Balkinization: The Constitutional Order 2015 (and Donald Trump)

The Constitutional Order 2015 (and Donald Trump)

Mark Graber

The United States is better thought of as in the fourth or fifth decade of a dysfunctional constitutional order than as either experiencing the painfully slow transition from the Reagan Era to something else (Jack Balkin’s view) or the collapse of the constitutional order of 1787 (Sandy Levinson’s view). From this perspective of the last half-century, the recent debate over President Obama’s agreement with Iran looks like the ordinary politics of a polarized regime, in which Republicans tend to be somewhat more organized than Democrats.

The American constitutional order has been remarkably stable since 1968 or 1980. Divided government is a constant. For the past 48 years, one party has controlled the Presidency, Senate, House and Supreme Court for only four years. No party has controlled all three elected national institutions for more than six years during this time period and for no more than two election cycles in a row. Strong partisanship is a constant. The Republicans in Congress are the most united congressional party in history. The Democrats in Congress are the second most united congressional party in history. If anything, the central features of this constitutional order seem to be hardening. The trend towards increased polarization is a constant. Each election cycle, surveys suggest, both national elites and ordinary voters are becoming more divided. Democrats agree with more Democrats and disagree with more Republicans on more issues than at any time in history.

Marty Lederman’s analysis of the Iran agreement highlights one constant of our constitutional order. Marty’s analyses are always rich and brilliant, but notice how focused they are on the particular question being debated. Republican presidents in the contemporary constitutional order make broad claims about unilateral executive power when defending presidential action. They point to the unitary executive and insist that presidents have unenumerated powers in foreign policy. Democrats, by comparison, claim only that the unilateral presidential action under consideration is constitutional. They make such assertions as the Libya bombings are not covered by the War Powers Act, Obama’s executive orders in immigration cases are authorized by federal legislation, and the Iran agreement is not a treaty. This is not to question Marty’s analysis in any way, but simply to point to a pattern that characterizes contemporary constitutional politics.

This polarized constitutional order is dysfunction, but for reasons having little to with the Constitution of 1787. For most of American history, political elites figured out how to operate the political institutions the framers established, even as they rejected important principles underlying those institutions. Jacksonians converted a “Constitution Against Parties” into a constitution operated by a dominant political party. From about 1880 until 1968, Americans experienced what might be described as “the long state of courts and parties” in which courts made the constitutional rules, presidents made foreign policy, and bureaucracies made the ordinary rules of the game subject to vague congressional oversight. The problems Americans are experiencing in the twenty-first century are rooted in the constitutional order rather than the constitutional text. Two equally divided polarized political parties in a system saturated with money may not be able to operate a constitutional democracy, any constitutional democracy. Donald Trump and the Koch brothers are not going away, even if by divine providence, we could change the Constitution of the United States without their involvement. Indeed, rather than think of Donald Trump as aberrational, he seems best understood as part of a long line of politicians made by media and money (think Ross Perot and Sarah Palin) that characterize contemporary constitutional politics, and a society in which celebrity and money are politically deafening is not likely to have a functional constitutional order.

Thinking about a dysfunctional constitutional order challenges basic assumptions of the populist left. One standard trope of populism is that the good American people are being victimized by elites (rich republicans) or undemocratic institutions (the Constitution). The rise of Donald Trump, the inability of Americans to accept basic science (I am thinking of running a campaign for the presidency on the basis of opposition to the Pythagorean theorem—it’s un-American) and the tendency of so much politics to revolve around who has the right to love who suggest a people not prepared to operate a democratic constitution in the twenty-first century.

Posted 10:38 AM by Mark Graber [link]